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ANALYSIS OF OCTOBER 28, 2008 CAV OPINIONS

[Posted October 29, 2008] Yesterday, while I labored mightily to persuade the Supreme Court of the merits of my position in two separate appeals, the Court of Appeals (probably knowing my predicament) dropped 94 pages worth of published opinions on me. Accordingly, I am a day late in posting this analysis. I hope to make up for that with sparkling prose.

Criminal law
There is one en banc decision, and it results in a sort of delayed affirmance of a criminal conviction. That’s because the original panel of the court had reversed, while the en banc court takes a different course. The case is Wright v. Commonwealth, and was originally decided on April 22.

In a nutshell, Wright was arrested and charged with assault on a law enforcement officer. At the required preliminary hearing in GDC, the prosecutor asked to nolle prosequi the charges, which the trial court granted. But the prosecutor had not given any reason at all for thus withdrawing the charge. That’s a problem, because the nolle prosequi statute says, in its entirety, “Nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown.”

Leaving aside whether the trial court validly exercised its discretion, you have to admit that some reason, any reason, even a cockamamie reason, has to be “shown” before a nolle prosequi can be granted. Why the big fuss? Because the prosecution later went out and secured a direct indictment of the same defendant on the same charge. Wright argued that this procedure, which she described as systemic in that prosecutor’s office, acted to deprive defendants of their statutorily protected right to a preliminary hearing.

Under Virginia law, a “person who is arrested on a charge of felony” has a right to a preliminary hearing, to determine whether probable cause supports the arrest. The purpose of this hearing is to ensure that someone gets an early judicial review of the legality of his detention. But the majority decides that this really doesn’t apply to someone who isn’t in custody – the term arrested clearly implies that one is in custody at the time of the hearing – so the nolle prosequi and subsequent indictment do not deprive Wright of a constitutional right.

The Supreme Court has held that if a person is indicted before he is arrested, then no preliminary hearing is necessary. The question in this case is whether Wright essentially fell under the same legal principle once the nonsuit order was entered. She contended that the order was void because no reason was given for it. The CAV disagrees, since the court had subject matter jurisdiction, and no one alleged fraud. At best, then the order was voidable. But in order to secure reversal of a voidable order, you have to act while the court, or an appellate court, still has jurisdiction.

Still with me? The conclusion here is that while circuit courts have “appellate” jurisdiction over GDC rulings, they don’t have the jurisdiction to review grants of nolle prosequi. This is the key analytical holding of the case, and forms the basis for the majority’s conclusion that the absence of a preliminary hearing cannot be attacked on these grounds. Judge Haley (joined by Judges Elder and Clements) files a vigorous dissent, contending that a prior Supreme Court holding (Triplett v. Commonwealth, decided in 1972) required such a hearing, even if the Commonwealth secures an indictment. He argues that “the majority eviscerates both [the nolle prosequi statute] and [the preliminary hearing statute], narrows the jurisdiction of circuit courts, and overrules Triplett.”

The dissent is longer than the majority opinion, and that’s relatively rare, since dissents usually don’t contain detailed factual recitations, as principal opinions almost always do. A dissent of this magnitude can serve as a writ magnet in the Supreme Court, and I suspect that’s where this case will ultimately end up.

The other criminal case of the day, Harris v. Commonwealth, may come as a surprise to some practitioners. When a juvenile is charged with a crime, state law provides that the JDR court has to conduct “an adjudicatory or transfer hearing” within 120 days thereafter. (This assumes the juvenile isn’t in custody. If he is, then the hearing has to happen within 21 days.) A transfer hearing is where the case is to be sent up to circuit court.

Proceedings against this juvenile must have been stalled by a number of logistical difficulties. By the time a transfer hearing was scheduled, the case was bumping up against the 120-day limit. The prosecutor filed a motion on Day 117 to have the hearing on Day 119; he faxed that motion to defense counsel. The next day (Day 118), the defense lawyer called the prosecutor to say that she was out of town and couldn’t come to court on Day 119. The prosecutor showed up anyway, and the hearing went on without the juvenile or his lawyer.

The same statute provides that the 120-day period can be waived for cause, but that the reason has to be in writing. The JDR judge agreed to extend the deadline, but didn’t write down the reasons.

You can see that we’ve got lots of problems here. When the matter next came up, the juvenile moved the court to dismiss for having missed the deadline. The court originally agreed, but later reinstated the case and scheduled a transfer hearing for, oh, say, around Day 240.

The principal issue in this case is whether these facts add up to a mandatory dismissal. The Court of Appeals concludes that it does not, finding that the 120-day language is directory instead of mandatory. Under circumstances like that, even “thou shalt” language in a statute won’t deep-six a prosecution, and that’s what the Court of Appeals finds here. In addition, the appellate court agrees that the juvenile wasn’t prejudiced by the delay.

There is another issue decided here, and that one deals with confrontation. The juvenile didn’t attend the reconvened hearing (this is the one on Day 240), although his lawyer did. During that hearing, the victim, a Mexican national, testified and was cross-examined by the juvenile’s lawyer. In the subsequent criminal trial in circuit court, the victim could not be found. The Court of Appeals decides that the Commonwealth did, indeed, use due diligence in attempting to locate the victim and compel his testimony. The unavailability thus established, the trial court was entitled to admit at trial his recorded testimony from the transfer hearing. The fact that the juvenile didn’t attend, despite having actual notice of the date, ended his last chance of keeping the testimony out.

Administrative law
The longest opinion of the day – just barely – is Volkswagen of America v. DMV, and gives us a glimpse at a statutory scheme that most of us probably never knew about.

In the far northern corner of Virginia, up in Winchester, Miller Auto Sales sells Volkswagens. It may sell other makes, too, but we at least know about the VW sales. The pace of its turnover was modest; in a market area in which a couple of dealers in the State of Northern Virginia (Springfield and Tysons Corner) sold more than 1,000 VW’s each per year, Miller Auto sold fewer than 50.

Back in the 90’s, Volkswagen introduced a couple of hot new models – the Passat and the New Beetle. This many years later, it might be hard to recall that these models, after being introduced, were flying off the lot. Except they weren’t flying off Miller Auto’s Lot. That’s because Volkswagen of America declined to ship any of those models to Winchester.

I was slightly surprised to find out that there is a Virginia statute that forbids auto manufacturers and distributors from shutting out particular dealers like this. It’s contained in the Motor Vehicle Code, in the article dealing with franchises. The statute provides that the distributor has to dole out its cars in a manner that’s “equitably related to” the total cars distributed nationwide for each model. At this point, Miller Auto has a legitimate beef.

Miller Auto filed a complaint with the DMV, which investigated and ruled in favor of the dealer; a hearing officer conducted a hearing and made recommendations to the commissioner of DMV, who adopted those findings. Volkswagen appealed to the local circuit court, which affirmed. So did the Court of Appeals, back in 2002. But the Supreme Court reversed the next year, finding that the DMV had used an improper method of evaluating the issue; it started a chain of remands going all the way back to the commissioner.

The commissioner took the Supreme Court’s guidance and again ruled in favor of the dealer; the circuit court again agreed. The Court of Appeals now affirms this ruling, essentially for the second time. The facts are many and the legal analysis long, so I’ll just summarize the key holdings here.

Given the way the statute reads, the commissioner simply had to find that shipping zero cars to Miller Auto wasn’t equitable. It did not, as Volkswagen had argued, have to find what the correct number would have been. The evidence was that Volkswagen imported over 18,000 Passats and over 5,500 New Beetles over the relevant time. There are only 600 VW dealers nationwide, so there were enough for each dealer to get at least one.

The commissioner didn’t have to start from square one upon remand; he already had the benefit of a hearing officer’s report, so all he had to do was reevaluate things using the correct legal standard. VW had argued that he was required by the remand order to conduct a full investigation, but the CAV rejects this out of hand.

The court rejects challenges to the Virginia statute based on the dormant commerce clause and the due process clause. These rulings, in my view, are the most likely to inspire further Supreme Court scrutiny if VW chooses to appeal further.

By the way, this “longest of the day” ruling is 41 pages. But the CAV issues its rulings in, from what I can tell, 10-point Times New Roman. The Supreme Court’s slip opinions come out in 12-point Courier. My best estimate is that if this opinion were in 12-point Courier, we’d be reading something on the order of 55 pages. My condolences go out to Judge Clements, who had the unenviable task of writing a long and comprehensive opinion in a decidedly unsexy case area.